Citation Nr: 9927496
Decision Date: 09/24/99 Archive Date: 10/05/99
DOCKET NO. 98-06 242 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to service connection for respiratory impairment,
due to mustard or tear gas exposure.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Associate Counsel
INTRODUCTION
The veteran had active service from March 1967 to February
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.
FINDING OF FACT
The claim of entitlement to service connection for
respiratory impairment, due to mustard or tear gas exposure,
is not supported by cognizable evidence demonstrating that
the claim is plausible or capable of substantiation.
CONCLUSION OF LAW
The claim of entitlement to service connection for
respiratory impairment, due to mustard or tear gas exposure,
is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered concerning the
veteran's claim for service connection for respiratory
impairment, due to mustard or tear gas exposure, is whether
he has presented evidence of a well grounded claim, that is,
one which is plausible and meritorious on its own or capable
of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v.
Derwinski, 2 Vet. App. 609 (1992). If a claimant does not
submit evidence of a well grounded claim, VA is under no duty
to assist him in developing facts pertinent to such claim.
Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons
set forth below, the Board finds that the veteran has not met
his burden of submitting evidence to support a belief by a
reasonable individual that his claim for service connection
for respiratory impairment, due to mustard or tear gas
exposure, is well grounded.
The veteran contends that during basic training he was given
a mask and "sent into a gas shed". He indicates that, once
inside, the gas mask malfunctioned and he was obliged to bang
on the doors to get out. He further relates that, on
emerging from the shed, his eyes felt like they were "on
fire" and that he was "burning up" when he returned to his
barracks. He indicates that he has experienced respiratory
problems ever since the foregoing incident. Therefore,
whether the gas to which he was exposed in the shed was
mustard gas or common tear gas, he contends that he presently
has respiratory impairment due to his inservice exposure to
the same.
In April 1967, the veteran was hospitalized for approximately
nine days in response to pneumonia. Service medical records
are otherwise silent for any reference to a respiratory
condition. The report pertaining to the veteran's January
1969 service separation physical examination reflects no
respiratory abnormality.
Subsequent to service, when examined by VA in December 1989,
the veteran's respiratory system was noted to be "clear".
The post service medical record also contains a report
pertaining to treatment rendered the veteran, under
apparently emergent circumstances, in 1990 at a non-VA
facility, the Ramsey Medical Center in St. Paul, Minnesota.
The diagnoses include "[a]cute bronchitis".
In considering the veteran's claim for service connection for
respiratory impairment, the Board would emphasize that his
currently shown bronchitis (which is apparently his lone
diagnosed respiratory condition) is assessed as being of
'[a]cute' derivation. However, it is prerequisite for any
favorable claim for service connection that the claimed
condition be of "chronic" derivation, see Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992), a requirement which
is not met in the present circumstances. Further, even
assuming (without conceding) that the veteran's bronchitis
was in fact of chronic derivation, his related claim for
service connection, insofar as being predicated on exposure
to tear gas in service, would still fail owing to the
consideration that there is no medical evidence of record
which makes such attribution. In addition, insofar as the
veteran's claim is predicated on exposure to mustard gas, the
Board is, to be sure, aware that the veteran's testimony
bearing on such exposure must be regarded as being true
(though whether the veteran was actually so exposed is a
question of fact). See Pearlman v. West, 11 Vet. App. 443,
447 (1998). However, entitlement to service connection based
on such exposure for the veteran's bronchitis would still not
obtain pursuant to the provisions of 38 C.F.R. § 3.316
(1998), which regulation governs claims predicated on such
exposure, inasmuch as the veteran's bronchitis is 'acute' and
the provisions of 38 C.F.R. § 3.316(a)(2) only authorize
related service connection for bronchitis of "chronic"
derivation. Given the foregoing, then, the Board is
constrained to conclude that a plausible claim for service
connection for respiratory impairment, due to mustard or tear
gas exposure, is not presented and, consequently, such claim
is not well grounded. 38 U.S.C.A. § 5107(a).
In addition, although the Board has considered and disposed
of the veteran's claim for service connection on a ground
different from that of the RO, the veteran has not been
prejudiced by the Board's decision. This is because, in
assuming that such claim for service connection was well
grounded, the RO accorded the veteran greater consideration
than this claim in fact warranted under the circumstances.
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand
this case to the RO for consideration of the issue of whether
this claim is well grounded would be pointless and, in light
of the law cited above, would not result in a determination
favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed.
Reg. 49, 747 (1992).
Finally, as pertinent to the veteran's claim for service
connection for respiratory impairment, due to mustard or tear
gas exposure, the Board is of the opinion that its discussion
above bearing on such issue is sufficient to inform the
veteran of the elements necessary to complete his application
for a claim for service connection relative to such
disability. See Robinette v. Brown, 8 Vet. App. 69 (1995).
ORDER
Evidence of a well grounded claim not having been submitted,
the appeal for service connection for respiratory impairment,
due to mustard or tear gas exposure, is denied.
MICHAEL P. VANDER MEER
Acting Member, Board of Veterans' Appeals